Montgomery v. Southwestern Arkansas Telephone Co.

Hart, J., (after stating the facts). This suit was instituted under section 7948 of Kirby’s Digest. The section in question is merely declaratory of the common law for the purpose of preventing discrimination, with penalties added. S. W. Tel. & Tel. Co. v. Danaher, 102 Ark. 547. See also Home Tel. Co. v. Peoples’ Tel. & Telegraph Co., 125 Tenn. 270; 43 L. R. A. (N. S.) 550, and cases cited; Bradford v. Citizens Telephone Co., 161 Mich. 385, 137 Am. St. Kep. 513. Telephone and telegraph companies are common carriers of intelligence, and must give the same service on the same terms to all who apply therefor, without partiality or unreasonable discrimination. S. W. Tel. Co. v. Danaher, 102 Ark. 547; Home Tel. Co. v. Peoples’ Tel. & Telegraph Co., supra, and cases cited. Telephone companies may in good faith determine for themselves the limits within which they will carry on their business. 37 Cyc. 1653; Cumberland Tel. etc., Co. v. Kelly, 160 Fed. 316, 15 Ann. Cas. 1210; Delaware & A. Telegraph & Tel. Co. v. State of Delaware ex rel. Postal Tel. & Cable Co., 50 Fed. 677. According to the allegations of the answer, appellee owned and operated a telephone exchange in the city of Prescott, and this included the thickly populated territory adjacent to the corporate limits. Within the limits which it established, under the statute, appellee was required to give the same service, on the same terms, to all who applied therefor, without partiality or unreasonable discrimination. It could not be required to extend its line or service beyond the limits which it had established. The act of appellee in making the contract of March 1, 1912, with appellants and others, whereby it agreed to furnish them telephone service on a party line, was a mere privilege which it might grant to them, but it could not have been compelled to have executed such a contract. This, we think, is clear from the principles decided in the cases cited above, and it was expressly so decided in the case of Younts v. Southwestern Tel. & Tel. Co. 192 Fed. 200. See also Crouch v. Arnett, 79 Pac. (Kan.) 1086. As long as appellants lived in the country, they had a right to telephone service over the party line during the life of their contract with the telephone company; but the present suit is not based on contract, but was instituted to recover penalties imposed by section 7948 of Kirby’s Digest, for unlawful discrimination. When appellants moved from their residence in the country, outside of appellee’s telephone zone, into their residence in the suburbs of the city of Prescott, they brought themselves within the limits established by the telephone company for maintaining and operating its telephone exchange. All persons who comply with the reasonable rules of a telephone company and who come within the same class are entitled to telephone service within the established limits of the telephone company; and it is for discrimination against such persons that the penalties of the statute are directed. When appellants moved into the limits established by appellee for conducting its business, they brought themselves within the class whom appellee was bound to serve without partiality or unreasonable discrimination, if proper application was made therefor. Appellants do not show that they applied for telephone service upon the same terms as those who live within the established limits, hut they demanded service under the contract they had made with appellee while they lived in the country. When they_ lived outside of appellee’s telephone zone, they could not compel appellee to give them telephone service, and for that reason could not recover the penalties denounced by the statute. At most, they could only have sued appellee for damages for breach of contract; and we do not decide whether they could have even maintained such action, for it might he said that, having moved away from their former residence in the country, they placed themselves in a position where they could not use the party line which they had contracted for, and on this account there would be no breach of contract on the part of appellee. The court did not err in refusing to permit appellants to introduce the contract above referred to in evidence; and, even if it had been admitted in evidence, under the views we have expressed, the result would have been the same. Therefore, the judgment will be affirmed.